Sher Shah, respondent No.1 stands charged for having committed an offence punishable under section 328/377, P.P.C. Read with section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No. 169 lodged in Police Station University Town on 8-3-1996. The F.I.R. Was lodged by Muhammad Ejaz, the father of the victim, Kashif Ejaz, aged about 12 years
2. After the registration of the case, respondent No. l managed to get pre---arrest interim bail from the Court of Additional Sessions Judge, Peshawar which, was, however, not confirmed by the Additional Sessions Judge vide his order dated 21-3-1996. Consequently, respondent No. l was arrested and he then applied for bail to the Illaqa Magistrate who, by his order dated 17-4-1996, refused to release him on-bail. For the redress of his grievance, respondent No. I knocked at the door of the Additional Sessions Judge who, vide his order dated 15-5-1996, extended the concession of bail to him. Hence this petition for the cancellation of bail.
3. Mr. Abdul Sattar Khan, Advocate, learned counsel for the petitioner, Mr. Muhammad Asif Khan, Advocate, learned counsel for respondent No. 1, Mr. Sohail Akhtar Advocate, the learned counsel for the State (respondent No.2) present and heard. Record of the case perused.
4. Admittedly, in the F.I.R., lodged by the father of the 12 years old victim, respondent No. l (Sher Shah) has not been charged for having attempted to commit sodomy with 12 years' old kid.
However, when the statement of the child (victim) was recorded under section 164, Cr.P.C. He gave a detailed version of the incident which had actually taken place. The boy, in crystal clear words, stated before the Magistrate that he had gone to the house situated in Street No.5 of the Canal Colony where Sher Shah accused-respondent No.2 was present who served him with tea.
Resultantly he became giddy and informed Sher Shah accused that something had happened to him after taking the tea. Sher Shah thereafter gave him a tablet to take. After administering the drug the contesting respondent took the boy to the adjacent room and started rubbing his head.
After some time, the boy became unconscious. The boy further stated that when he regained consciousness he found that he was all alone in the room and that his trouser-rope was untied.
The boy further alleged, before the Magistrate, that he could not "walk" properly because he felt pain between his legs.
However, he managed to reach his house but before that respondent No. l (Sher Shah) met him, on the street and threatened him not to disclose the incident to anybody otherwise he would face dire consequences. On reaching the house, the boy narrated the story to his father about the occurrence. In the last two lines of his statement, recorded under section 164, Cr.P.C. The boy charged the accused respondent as under:-- "I charge Sher Shah for making me unconscious, confining me to room and disgracing me."
5. When the anal swa bs were sent for microscopic identification to the chemical Examiner at Lahore, the Chemical Examiner Government of Punjab, opined as under:-- "The above swa bs are stained with semen. However, poison is not detected in the above Gastric Lavage."
6. The, learned counsel for the petitioner submitted that the victim was a child of about 12 years and had no enmity/ill-will or ulterior motive to have charged respondent No. l for making him unconscious by administering intoxicant to him and then attempting to commit sodomy with him.
According to him, the perusal of the F.I.R., statement of the victim recorded under section 164, Cr.P.C., and the Medical Report would reveal that prima facie the petitioner is connected with the commission of the offence with which he has been charged by the boy and that therefore, he was not entitled to the concession of bail specially when his case was hit by the prohibitory clause of section 497, Cr.P.C.
7. On the other hand, the learned counsel for the contesting respondent (Sher Shah) stated that since respondent No.1 has not been charged directly in the F.I.R. For attempting to commit sodomy with the boy, therefore, he was rightly released on bail by the Additional Sessions Judge.
8. Without dilating upon the merits of the case at this stage and keeping in view the record available on the file, I am of the view that reasonable grounds do exist for believing that the respondent No. l had attempted to commit sodomy with the boy by intoxicating him. Resultantly he was not entitled to be release on bail.
9. The impugned order of the Additional Sessions Judge is, therefore, set aside and the bail granted to respondent No. l is recalled. The respondent accused is present in Court and shall be taken into custody and sent to jail forthwith.